LANE v. THE STATE OF NEW YORK, #2000-019-008, Claim No. 95460

Synopsis

Court dismissed claim in which Claimant alleged the State was liable for an
inmate-on-inmate assault and neglecting to follow security procedures and
policies for failure to establish a prima facie case.

This Claim arises from an attack upon Claimant which occurred on June 25, 1995,
while he was an inmate at Shawangunk Correctional Facility (hereinafter
"Shawangunk"). The trial of this Claim was heard on May 10, 2000 at Sullivan
Correction Facility with Claimant appearing

pro se. The Claim was bifurcated and this Decision addresses the issue
of liability only.

Claimant alleges that the defendant State of New York (hereinafter "State") was
negligent in 1) failing to provide adequate security in accordance with
Shawangunk policy and procedure while escorting inmates from the recreation yard
to the housing unit and 2) failing to place Claimant in protective custody after
he was previously attacked on July 8, 1994.

On June 25, 1995, Claimant went to the Block A recreation yard and was
returning to the housing unit under the direction of Correction Officer Travis
when he was assaulted by two inmates, Maldonaldo and Mask. Correction Officer
Travis, called as a witness by the State, confirmed he was on duty on the date
in question and performed escort duty, which consisted of escorting inmates in
and out of the recreation yard. Officer Travis recalled that as the inmates
were returning into the housing unit Claimant ran up and
"hid"[1]

behind him. The Officer discovered that Claimant had been injured so he
instantly instituted a lockdown of all inmates and called in an emergency
response. Officer Travis indicated that he did not see the assault; was not
certain how or where the assault had occurred; or what parties were responsible
for the same. Claimant sustained razor cuts to his face and chest which
required treatment at the Shawangunk infirmary and subsequently at St. Luke's
Hospital.

1. Shawangunk policy and
procedure

It is Claimant's contention that the State did not adhere to its own policy and
procedure while escorting inmates from the recreation yard to the housing unit.
Thus, Claimant has the burden of proving by competent evidence that the State
failed to provide adequate supervision to prevent that which could be reasonably
foreseen. (

Colon v State of New York, 209 AD2d 842; Flaherty v State of New
York, 296 NY 342). However, Claimant offered no evidence, other than his
own testimony and opinion, that proper escort procedure and policy were not
followed. To counter the Claimant's assertions, Officer Travis testified that
the normal escort procedure and policy was complied with on the date of this
incident just as it is routinely followed on a daily basis.

In weighing the testimony of Claimant versus that of Officer Travis, the Court
finds Officer Travis' testimony most credible. Officer Travis was able to
describe the procedures followed on the date of this incident, whereas Claimant
could not specify one regulation violated by Officer Travis. In short, there
was no credible proof, other than Claimant's own opinion, that the State failed
to follow proper supervisory procedure while escorting inmates. Additionally,
there is nothing to indicate the State had notice or opportunity to intervene
and prevent the June 25, 1995 attack but negligently failed to do so. In sum,
Claimant failed to meet his burden of proof on the allegation the State
negligently provided security while escorting him from the recreation yard to
the housing unit. Consequently, that portion of the Claim is dismissed due to
Claimant's failure to establish a prima facie case.

2. Known enemies

Claimant also alleges the State was negligent in releasing him into the general
population at Shawangunk in view of the fact Claimant was previously assaulted
by a fellow inmate, Randy Velasco, with a sharp object on July 8, 1994. The
State did not dispute the facts relating to this prior assault. Almost one year
after the 1994 incident, but only nine days before the underlying attack,
Claimant testified that he wrote a letter to Shawangunk Superintendent Louis F.
Mann dated June 16, 1995 requesting an immediate transfer from the facility and
protective custody until such time as the transfer could be arranged. (Cl. Ex.
1). Claimant testified he wrote this letter because he was fearful that other
inmates would retaliate against him since he had informed prison officials that
inmate Velasco was his attacker. Claimant asserted the State took no action in
response to this letter and, as such, failed to properly protect him from the
general population.

It is well-settled that the State may incur liability for an assault on an
inmate by another inmate in any of the three following situations: (1) the
victim is a known risk and the State failed to provide reasonable protection;
(2) the State had notice that the assailants were particularly prone to
perpetrating such an assault and failed to take proper precautionary measures;
or (3) the State had ample notice and opportunity to intervene and failed to do
so. (

Claimant's only potential evidence of notice in any respect to the State is his
1995 letter to the Superintendent. However, on cross-examination, the State
established Claimant had no proof that this letter was ever sent to the
Superintendent. Moreover, Claimant offered no credible explanation as to why
this letter was written almost one year

after the 1994 Velasco incident, but coincidently nine days before the
1995 assault. In sum, the Court was not persuaded by Claimant's testimony that
this letter was ever sent to or received by the Superintendent or, for that
matter, actually written prior to the assault of June 25, 1995. As such,
Claimant's position that the State obtained notice regarding his dangerous
situation from his letter is found incredible.

Assuming,

arguendo, the Court were to make a factual determination that this letter
was received by the Superintendent prior to the 1995 assault, Claimant's claim
must still fail. First, Claimant offered nothing but his own speculation that
the 1995 assault was in retaliation for or related in any way to the 1994
Velasco incident. Secondly, the State produced a document entitled "Refusal of
Admission to Protective Custody" signed by Claimant on June 26, 1995--one day
after the 1995 assault.[2] (State's Ex. A).
Claimant did not deny signing this document or suggest that he felt compelled to
sign as the result of any intimidation. As such, Claimant's refusal of
protective custody the day after the second assault flies in the face of his
current allegations. Finally, the Court received into evidence "Separation
System" reports which do not include either inmate Maldonaldo or Mask on
Claimant's known enemy list until after the 1995 assault. (State's Exs. B &
C). Accordingly, the State was not on notice that either inmate Maldonaldo or
Mask were known enemies to Claimant before the 1995 assault nor was there any
proof offered that these assailants were particularly prone to perpetrating such
an assault. Consequently, the facts of this case do not establish any basis
for imposing liability against the State. As such, the State certainly cannot
be held liable for failure to take precautionary measures to protect this inmate
from "unknown" enemies or risks which were not reasonably
foreseeable.

For the foregoing reasons it is the opinion of the Court that Claim No. 95460
be, and the same hereby is, DISMISSED. Any motions made at trial on which the
Court previously reserved are hereby denied.

The signed document reads as follows: "Please be advised that at this time I
respectfully decline your offer of my admission to Protective Custody.
Furthermore, I do not believe that I am in jeopardy by staying in General
Population, nor will I hold New York State, Shawangunk Correctional Facility, or
any of its employees responsible for any harm which might befall me while in
General Population. In addition, I understand that if at any time I feel the
need for Protective Custody, I may at that time request it." (State's Ex.
A).